Niall Brian Dinsmore v. Her Majesty’s Advocate [2017] HCJAC 11

Note of appeal against sentence:- On 28 September 2016, at a Preliminary Hearing at Glasgow High Court, the appellant pled guilty to a charge of having in his possession 5 stun-guns, contrary to section 5(1A)(a) of the Firearms Act 1968 (charge 2), a charge of having the stun-guns in his possession without holding a firearms certificate contrary to Section 1(1)(a) of the 1968 Act (charge 4) and a charge of having in his possession offensive weapons, namely 5 truncheons, without reasonable excuse or lawful authority, contrary to section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 (charge 5). On 25 October 2016, after the court had obtained a Criminal Justice Social Work Report, the solicitor advocate appearing on behalf of the appellant invited the court to hold that, in terms of section 51A(2) of the 1968 Act, “exceptional circumstances” existed which would justify the court in not imposing the “minimum term” for such an offence, namely 5 years, as defined in section 51A(5)(b) of the 1968 Act. The circumstances were that the appellant returned home from a holiday in Bulgaria with his girlfriend. He was stopped by a Border Force Officer at Edinburgh Airport and, in response to questions, the appellant stated he had tasers and batons which he had purchased on holiday. It was his position at interview that he had bought the items as gifts and did not realise how dangerous they were or that they were prohibited in Scotland. The sentencing judge did not consider that “exceptional circumstances” existed and the appellant was sentenced to 5 years imprisonment on charge 2, 18 months imprisonment in relation to charge 4 (discounted from 2 years on account of the plea) and 6 months imprisonment in relation to charge 5 (discounted from 8 months on account of the plea). The appellant appealed against the sentence imposed. It was submitted on his behalf that the judge had erred in concluding that there were no “exceptional circumstances”. In particular, it was submitted that the appellant had fully cooperated with the police and pled guilty. It was further submitted that he only had the stun‑guns in his possession for a short period of time and was unaware that the items were prohibited firearms. It was submitted that the appellant’s intention was not to use them for any criminal purpose in that they were presents for friends. The appellant was a man of good character and any previous convictions were restricted to road traffic offences and he had been assessed as suitable for an alternative to custody. Here the court refused the appeal. The court considered that some of the factors that were present in other cases where “exceptional circumstances” had been established were absent in this case. The court observed that the clear intention of Parliament in enacting section 51A was to classify disguised stun-guns as firearms to protect the public. In the present case the court considered that the circumstances were very serious in that the dangerous items were brought into Scotland with the intention of giving them away putting them out of the appellant’s control and the sentencing judge had properly considered the mitigation advanced and his reasoning and decision could not be criticised.